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The Justice Department has opened an investigation into Fairfax County Commonwealth’s Attorney Steve Descano’s office over a policy that directs prosecutors to consider immigration consequences when handling criminal cases.
Descano received notice of the investigation Wednesday. Federal officials contend the policy may discriminate against U.S. citizens by providing preferential treatment to undocumented defendants in decisions involving charges, plea agreements and sentencing.
Harmeet K. Dhillon, assistant attorney general for the Justice Department’s Civil Rights Division, said the inquiry will examine whether the policy results in favorable deals for undocumented immigrants accused of serious crimes and puts the community at risk.
Descano’s office confirmed receiving the notice and expressed confidence that the policy will withstand scrutiny.
“My policies are fair, legal, and reflect the values of my community,” Descano said in a statement.
The guidelines have been in effect since December 2020, during Descano’s first year in office. They instruct assistant commonwealth’s attorneys to consider immigration consequences when possible and when consistent with justice.
Prosecutors are directed to weigh both the immigration consequences associated with a specific charge and the effect that deportation or removal could have on a defendant’s family and community. The guidelines acknowledge that prosecutors cannot always avoid those consequences.
The policy also says public safety will likely take priority in cases involving violence or other serious harm to a victim.
For lesser offenses without an identifiable victim, prosecutors may have more flexibility to negotiate an outcome that avoids or reduces immigration consequences. However, the guidelines state that such an agreement should not be more favorable than one offered to a defendant who does not face those consequences.
Other provisions prohibit prosecutors from seeking the death penalty and from automatically transferring juveniles to circuit court for trial as adults unless state law requires it. The guidelines also address when prosecutors should defer to a court’s judgment.
The Trump administration has repeatedly challenged Fairfax County officials over their immigration policies, accusing Descano and Sheriff Stacey Kincaid of releasing people sought by U.S. Immigration and Customs Enforcement without notifying the agency.
Under Fairfax County’s Trust Policy, the sheriff and commonwealth’s attorney limit cooperation with ICE unless compelled by law or a court order. Kincaid’s office says ICE is notified whenever an undocumented person enters custody, but federal officials often do not appear for the person’s release or secure a judicial warrant authorizing the jail to continue holding the individual for transfer.
The Department of Homeland Security has cited the case of Abdul Jalloh, reportedly a Sierra Leone national who faced numerous charges, most of which were dropped, before he was accused of fatally stabbing Fredericksburg resident Stephanie Minter at a Hybla Valley bus stop on Feb. 23.
The agency also warned Fairfax County officials against releasing an 18-year-old Fairfax High School student who received a four-month jail sentence in April for groping multiple students.
The Justice Department announced its investigation slightly more than a week before Descano and Kincaid are scheduled to testify about their offices’ interactions with ICE before a House Judiciary subcommittee.
Descano still plans to attend the hearing, according to his office. It is scheduled for 10 a.m. May 14.
Descano has accused the Trump administration of creating a “culture of fear” through hardline immigration policies, which he says hinder prosecutors and other state and local public safety officials. Earlier this year, he joined other Democratic prosecutors in forming a task force intended to hold federal immigration officials accountable for potentially unlawful conduct.
Arlington Commonwealth’s Attorney Parisa Dehghani-Tafti, another member of the task force, was subpoenaed by the House Judiciary Committee last week over a case involving a retired academic accused of confronting Katie Miller, the wife of senior Trump adviser Stephen Miller, and distributing pamphlets listing their home address.
Dehghani-Tafti declined to bring charges, finding insufficient evidence that the academic intended to encourage harassment of the Millers and concluding that the conduct was constitutionally protected speech.
Virginia lawmakers also passed several measures this spring seeking to restrict ICE operations. The legislation included proposed bans on masks, cooperative agreements between immigration officials and state or local law enforcement, and civil arrests at courthouses, schools and health care facilities.
Gov. Abigail Spanberger signed the measures barring cooperation agreements between ICE and law enforcement agencies. Bills addressing masks and civil arrests remain unresolved after legislators rejected amendments that sponsoring state Sen. Saddam Salim called “toothless.”